Alston v. Town of Brookline

United States District Court, D. Massachusetts

August 7, 2017

GERALD ALSTON, Plaintiff,v.TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; BERNARD GREENE, in his individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; STANLEY SPIEGEL, in his individual capacity; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.

ORDER ON REPORT AND RECOMMENDATION

GEORGE
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

The
magistrate judge to whom this matter was referred filed a
report and recommendation (dkt. no. 132)
(“R&R”) with respect to Defendant Stanley
Spiegel's Renewed Motion for Sanctions Pursuant to
Federal Rule of Civil Procedure 11 (dkt. no. 91). The
magistrate judge recommends allowing the motion and ordering
the plaintiff's attorney to pay defendant Spiegel's
fees and expenses incurred after this Court issued its Order
dismissing without prejudice the First Amended Complaint on
September 30, 2016. The plaintiff and defendant Spiegel have
filed objections to the R&R (dkt. nos. 138, 139).

Having
reviewed the magistrate judge's recommendation as well as
the relevant submissions from the parties, I approve and
ADOPT the R&R to the extent that it recommends granting
the defendant's motion and imposing sanctions. I
conclude, however, that defendant Spiegel should be
compensated for fees and expenses incurred after March 8,
2016, the date upon which counsel for Spiegel served
plaintiff's counsel with Rule 11 “safe
harbor” notice.

On
December 1, 2015, plaintiff Gerald Alston brought a complaint
against the Town of Brookline (the Town), the Brookline Board
of Selectmen (the Board), eight people who were present or
past members of the Brookline Board of Selectmen in their
individual and official capacities, the Human Resources
Director for Brookline, Town Counsel, the union of
firefighters to which plaintiff belonged, Local 950 (the
Union); and Stanley Spiegel, a Town Meeting member and member
of the Town's Advisory Committee, alleging violations of
42 U.S.C. §§ 1981, 1983, and 1985, stemming from an
alleged ongoing policy and practice of racial discrimination
in Town governance. (#1.)

On
January 26, 2016, an amended complaint was filed naming seven
additional plaintiffs.[1] (#21.) The 85-page, 270-paragraph amended
complaint stated that the plaintiffs “bring this claim
on behalf of themselves and all others who have been damaged
by Brookline's longstanding and well-established policy,
custom and practice of opposing racial equality, enforcing
racial subordination, engaging in affirmative action and
favoritism towards [W]hite residents and employees, and
retaliating against persons who protest racial
discrimination.” Id. ¶ 1. The plaintiffs
included Gerald Alston, who is Black and was a firefighter
for the Town, whose allegations are set out in detail below.
Of the other five plaintiffs, the amended complaint stated
that one, a worker in the Sanitation Department, was Black,
id. ¶ 87, and three, residents of the Town,
identified themselves as being of Puerto Rican, Guatemalan,
and Dominican descent. Id. ¶¶ 47-48. With
regard to the remaining plaintiff, a Town resident who
alleged discriminatory treatment concerning, among other
things, an application to be a firefighter, the amended
complaint did not state his racial background, a fatal flaw
in a case alleging discrimination on the basis of race.
Id. ¶¶ 79-86, 252, 261.

All
defendants moved to dismiss the amended complaint (##34, 36,
52), including Spiegel. (#45.) Spiegel filed a motion for
sanctions pursuant to Fed.R.Civ.P. 11 against Attorney Brooks
Ames.[2] (#54.) Plaintiffs filed a combined
opposition to Spiegel's motion to dismiss and motion for
sanctions (#56) and Spiegel replied. (#65.)

In
ruling on the defendants' motions to dismiss, this court
entered a Report and Recommendation to the District Court,
O'Toole, J., recommending that all plaintiffs other than
Alston be severed from this action and dismissed without
prejudice under Fed.R.Civ.P. 20(a)(1) because many of the
plaintiffs' allegations did not arise out of the same
“transaction or occurrence.” (#72 at 23.) The
court rejected plaintiffs' efforts to join their varied
complaints about their treatment by numerous actors in the
Town into one action alleging an over-arching conspiracy of
racism spanning centuries because plaintiffs'
allegations, involving different people and circumstances,
complaining of discriminatory acts in hiring, employment
conditions, First Amendment retaliation, accommodations for
injury, and policing practices, were too disparate to be
tried together. See id.

With
regard to the remaining plaintiff, Alston, because the
complaint was so poorly drafted and contained so many
lengthy, irrelevant assertions, this court found that it
“simply [wa]s not clear whether the amended complaint
present[ed] an actionable case or controversy that the court
c[ould] resolve, or state[d] colorable claims against the
named defendants.” (#72 at 28.) Thus, this court
recommended that the District Court dismiss the amended
complaint without prejudice with leave for Alston to replead
his claims in a manner consistent with the requirement of
Fed.R.Civ.P. 8(a)(2) (requiring a “short and plain
statement of the claim showing that the pleader is entitled
to relief”).[3]

Finally,
this court recommended that the claims against Spiegel be
dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6)
for failure to state a claim upon which relief can be
granted. (#72 at 33-39.) The basis for that recommendation is
described in more detail below.

Judge
O'Toole adopted the Report and Recommendation, with the
exception of the recommendation that the claims against
Spiegel be dismissed with prejudice: “Since the
plaintiff is being granted leave to replead against the other
defendants, I think it is fair to give him a chance to
replead his claims against Spiegel as well.” (#75 at
2.)

Alston
filed a second amended complaint on October 21, 2016. (#78.)
Spiegel again moved to dismiss (#80); this court recommended
to Judge O'Toole that the second amended complaint be
dismissed with prejudice as to Spiegel. (#98.) Meanwhile,
Spiegel renewed his motion for sanctions. (#91.) Judge
O'Toole adopted the second Report and Recommendation and
dismissed the claims against Spiegel with prejudice:
“The plaintiff was provided an opportunity to cure the
deficiencies of the first amended complaint with respect to
the claims against the defendant, Stanley Spiegel, but has
failed to do so.” (#105 at 1-2.)

A
hearing on Spiegel's renewed motion for sanctions was
held on Thursday, June 8, 2017. After argument this court
found that sanctions against Attorney Ames under R. 11 are
appropriate for the reasons set out below. The court ordered
counsel for Spiegel to file notice of proposed reasonable
attorneys' fees and expenses by June 22, 2017 and
Attorney Ames to file any objection to the fees by June 29,
2017.[4]

II.
Facts Concerning Alston's Claims Against Spiegel in
the First Amended Complaint.

Familiarity
with the facts of this case is presumed. (#98 at 3-6.)
Abbreviated facts pertaining to Alston's claims will be
repeated here.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Alston
was the only plaintiff who made allegations against Spiegel.
The amended complaint identifies Spiegel as &ldquo;an elected
town meeting member and an appointed member of the advisory
committee&rdquo; who has &ldquo;frequent contact with the
Board of Selectmen both formally and
informally.[5] (#21 &para; 117.) The first amended
complaint alleges that Alston, who is Black, joined the
Brookline Fire Department in 2002. Id. &para; 102.
In May 2010, Alston&#39;s supervisor left a voicemail on his
phone; at the end of the voicemail the supervisor used
profanity and called Alston a racial slur. Id.
&para;&para; 175-178. Alston reported the message to the Fire
Department&#39;s chief operating officer, who took no action.
Id. ¶¶ 179-180. In the ensuing ...

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